CONTENTS Introduction 1 California as a law-and-order state 1 An uneasy pendulum shift 3 The prison-overcrowding crisis 3 A legacy of high costs and problems 3 Major criminal justice reforms 4 2011 – Public safety realignment 4 2012 Proposition 36 – Changes to ‘three strikes’ 4 2014 Proposition 47 – Reducing criminal sentences 5 2016 Proposition 57 – Increasing use of parole 5 2016 – Death penalty repeal fails 5 Considering the ‘Right on Crime’ approach 5 Growing fear about crime 6 What’s next on the horizon? 7 Conclusion 8 About the author 8

were driven by the state’s powerful law-enforcement lobby and “public safety” unions, who appeared at times more R STREET POLICY STUDY NO. 102 interested in protecting their budgets (and creating new July 2017 “customers”) than promoting justice. Not every new proposal is ideal, of course, and California has yet to embrace the kind of wide-ranging reforms in its cor- rections bureaucracy that have been implemented by Texas, for instance. The state also has failed to implement signifi- HOW CALIFORNIA ­SOFTENED cant reforms to its public-employee pension system and has ITS ‘TOUGH-ON-CRIME’ moved away from outsourcing – measures that could help stretch California’s budget, which is burdened by the high- APPROACH est cost in the nation (total and per capita) for running its prison system. Notwithstanding such costs, California still Steven Greenhut has an astoundingly high recidivism rate of approximately 65 percent.1

INTRODUCTION This paper seeks to place these shifts in historical context. It alifornia has a long history of pioneering criminal- examines a few of the most significant reform policies that justice reforms. From the 1960s to the early 2000s, have passed through the Legislature or been put to voters such reforms mostly toughened the state’s approach through the state’s robust initiative process. As California to handling criminals, with some of the most signifi- goes, so goes the nation. As such, it is worth seeing where Ccant policy reforms implemented at the ballot box. Califor- the state is headed on this significant issue. nia’s past approaches—especially its “three-strikes” law— have become models for other states, although such policies have led to some troubling results. CALIFORNIA AS A LAW-AND-ORDER STATE These days, California has a national reputation as a “deep More recently, as overall crime rates have fallen to levels not blue” liberal state. But on criminal justice issues, it has long seen since the 1960s, the state has led the way both to soften been a bastion of law and order, a place where tough-on- those earlier approaches and to implement innovative poli- crime measures have been sure winners in the Legislature cies that reduce sentences for some offenders. This shift has and routinely approved by voters at the ballot box. Until been driven in part by a prison-overcrowding crisis, but pub- recent years, even Democratic politicians (at least those with lic sentiment has also changed over the years. statewide ambitions) have played to public fears about crime, which resonate in California’s heavily suburban population. Given the high costs—both financially and in terms of civil For instance, in the 1990s and 2000s, California passed the liberties—the state’s incarceration-heavy approach imposed, these changing policies and attitudes are a welcome devel- 1. “Recidivism Rates,” California Innocence Project, 2016. https://californiainnocen- opment. Many of the tough-on-crime approaches of the past ceproject.org/issues-we-face/recidivism-rates/.

R STREET POLICY STUDY: 2017 HOW CALIFORNIA SOFTENED­ ITS ‘TOUGH-ON-CRIME’ APPROACH 1 toughest-in-the-nation “three-strikes law” and other signifi- When Republican Gov. Arnold Schwarzenegger replaced cant anti-crime measures. After California passed its “three- Davis in the historic 2003 recall election,5 he challenged the strikes” legislation in 1994, 12 other states subsequently powerful California Correctional Peace Officers’ Associa- adopted similar legislation that same year and 10 more fol- tion (CCPOA) and began moving inmates in the state’s over- lowed suit in 1995.2 crowded prison system to privately run facilities. By contrast, Davis had granted the guards a 38 percent pay increase (over Indeed, Ronald Reagan was first elected governor on an several years) during the budget crisis.6 anti-crime platform in 1966, setting the stage for decades of related rhetoric by other governors. In one of Reagan’s While these matters dealt mostly with pay and hiring issues, first speeches once in office, on Jan. 16, 1967, he lamented it was nevertheless significant that Schwarzenegger was his state’s high crime rate: “California is the leading state willing to defy a public-safety union that had been largely in terms of major crimes … On a percentage basis, we have getting its way for years, in part due to the perception that nearly twice our share – 9 percent of the population and 17 it constituted the front lines of the crime problem. Indeed, percent of the crime.”3 Accordingly, Reagan later proposed a CCPOA had played to these crime fears and had itself been a wide-ranging package of measures designed to toughen pen- prominent backer of tougher measures and “law-and-order” alties and give local police more power. He even proposed a politicians. new government agency to coordinate crime-fighting efforts. More importantly, an article by The Associated Press and Reagan’s approach largely continued through successive Huffington Post reported that Schwarzenegger “signed leg- administrations. But that ethic arguably came to an apex in islation […] that increased early release credits, made it more the 1998 campaign for governor between moderate Dem- difficult to send ex-convicts back to prison for parole viola- ocrat Gray Davis and Republican Attorney General Dan tions, and rewarded county probation departments for keep- Lungren, who spent the campaign boasting about his law- ing criminals out of state prisons.”7 It was perhaps the first enforcement credentials. Given the public’s views about major policy shift in decades. crime and punishment, it was the one main area where that year’s Democratic gubernatorial and legislative candidates Change intensified when Jerry Brown succeeded Schwar- felt vulnerable. As such, Davis wasn’t about to get outflanked zenegger as governor in 2011. Despite his reputation as a by the right on crime. In a May 2000 article, The New York progressive, Brown’s criminal-justice views have been as Times reported: “As governor, Mr. Davis … insisted he would unpredictable and quirky as many of his other positions. In be harder on crime than anybody” and that “he would give the 1970s, during Brown’s first term as governor, when the judges discretion to sentence 14-year-olds to death; he would state passed tougher sentencing laws, he actually supported let them consider supporting non-unanimous jury verdicts. a key part of that agenda in the form of mandatory minimum Indeed, Mr. Davis said in a televised debate, on issues of law sentences. Commenting on this decision in an interview last and order, he considered Singapore – a country that executes year, Brown told the Mercury News, “Back then, there was a drug offenders – ‘a good starting point.’”4 feeling we should make punishment more certain … There were claims that the parole board was arbitrary and influ- These debate points were somewhat controversial even enced by bias against minorities … There was also a great at the time, but they seem unfathomable after 17 years of skepticism about rehabilitation and a belief that it didn’t hindsight. As violent crime rates in California and across work. Therefore, the only thing left was punishment.”8 It was the country dropped, the public’s and politicians’ attitudes precisely this approach that filled prisons beyond the brim began to change so much that journalists and historians look and had debatable results in terms of fighting crime. back at the anti-crime rhetoric in that debate as something almost absurd. The political winds started to shift shortly thereafter.

5. The recall centered on tax hikes, budget deficits and an electricity crisis that resulted in rolling blackouts.

6. Ben Carrasco, “Assessing the CCPOA’s political influence and its impact on efforts 2. Nicole Shoener, “Three Strikes Laws in Different States,” Legal Match, Sept. 30, to reform the California corrections system,” California Sentencing & Corrections 2016. http://www.legalmatch.com/law-library/article/three-strikes-laws-in-different- Policy Series, Stanford Criminal Justice Center Working Papers, Jan. 27, 2006. http:// states.html. www.sjra1.com/index_files/cjreports/2006%20ASSESSING%20CCPOA%20POLITI- CAL%20INFLUENCE%20AND%20IMPACT%20ON%20REFORM.pdf. 3. Gov. Ronald Reagan, “Statement of Governor Ronald Reagan on Crime,” Jan. 16, 1967. https://www.reaganlibrary.archives.gov/archives/speeches/ 7. Don Thompson, “California Inmate Release: Schwarzenegger Prison Reform Poli- govspeech/01161967a.htm. cies Were Mixed,” The Associated Press/Huffington Post, July 24, 2011. http://www. huffingtonpost.com/2011/05/24/california-inmate-release_n_866189.html. 4. Evelyn Nieves, “California’s Governor Plays Tough on Crime,” The New York Times, May 23, 2000. http://www.nytimes.com/2000/05/23/us/california-s-governor-plays- 8. Jessica Calefati, “California Gov. Jerry Brown vigorously defends Proposition 57,” tough-on-crime.html. Oct. 7, 2016. http://www.mercurynews.com/2016/10/07/jerry-brown-on-prop-57/.

R STREET POLICY STUDY: 2017 HOW CALIFORNIA SOFTENED­ ITS ‘TOUGH-ON-CRIME’ APPROACH 2 AN UNEASY PENDULUM SHIFT state had promised to pay in pensions to police and prison California has always had a complicated relationship with guards hired in response to public-safety fears. crime and punishment. The aforementioned Mercury News interview with Brown focused on Proposition 57, a Those same fears also enabled police officers and guards November 2016 statewide measure that his administration accused of wrongdoing the ability to gain more extensive authored. It moved the state’s sentencing approach away job protections than those in other states. This has made it from those mandatory minimums imposed in the 1970s and “almost impossible to publicly identify offending officers and toward more frequent use of parole for those convicted of a determine whether they are being adequately punished.”14 number of lesser offenses. Between his first term in the 1970s In other words, these policies came with a steep and endur- and his current term, Brown’s views changed in ways that ing price. track changes across the state.9

In 2009, California was under pressure by the federal courts THE PRISON-OVERCROWDING CRISIS to slash its prison population, which contained double the During the first major criminal justice crisis of his recent number of prisoners it was designed to house. The state Sen- terms, Jerry Brown in 2013 actually echoed themes from ate passed a bill backed by Schwarzenegger that would have the law-and-order past. The issue was a federal court order reduced the population by 27,000 by allowing some prison- for the state to release thousands of prisoners from its over- ers to finish their sentences at home. In an article written crowded state prison system, with the goal of reducing for the Orange County Register by Brian Joseph and Tony overcrowding to 137 percent of prison capacity. Instead of Saavedra, the authors detailed the heated debate occurring going along with the order, the Brown administration ini- in the state capitol with respect to the measure: “Legisla- tially refused to comply (and even evoked imagery of George tive Republicans … say the entire plan is soft on crime” and Wallace standing in the courthouse doorway).15 This caused “that’s enough to cause serious problems in the Assembly. the court to respond: “Despite our repeated efforts to assist Several Democrats there are eyeing higher office. Others face defendants to comply with our Population Reduction Order, tough re-election bids. A ‘soft-on-crime’ label could kill their [the Brown administration has] consistently engaged in con- political careers.”10 Joseph and Saavedra’s assessment proved duct designed to frustrate those efforts.”16 Thus began a curi- prophetic, as the bill eventually was killed and a costly and ous test of wills between the federal courts, which had long watered-down alternative passed. To this day, California has been frustrated by the state’s prison conditions, and a gov- “the most-costly state prisons in the country.”11 ernor who wasn’t about to put criminals back on the streets, even though the state had lost its appeal at the U.S. Supreme In that same 2009 article, the reporters also pointed to the Court. way voters across the state, even in liberal cities such as Los Angeles, “consistently put their support behind tough-on- Soon after Jerry Brown defied the supposedly out-of-touch crime candidates, tough-on-crime ballot initiatives, tough- federal judiciary, he embraced a far more ameliorative on-crime sentencing laws.”12 As a result of these conflicting approach. Since then, he has continued to push criminal-jus- priorities, spending on prisons and law enforcement contin- tice reforms. Likewise, the Legislature has authored dozens ued to gobble up growing chunks of the budget. All of this of justice-related bills, with mixed success. The law-enforce- was exacerbated by the massive amounts of money13 that the ment lobby retains its status as among the most powerful in the Capitol, but these days, it is usually playing defense.

9. In addition to his change of heart on sentencing, Brown was also known for his opposition to the death penalty, although he vowed to implement the will of the peo- A LEGACY OF HIGH COSTS AND PROBLEMS ple. He appointed Rose Bird as chief justice of the California Supreme Court, and she became the only chief justice in the state’s history to be removed by voters. The fight Despite record levels of spending, California’s state bud- over Bird was in 1986, three years after Brown left the governorship. Her failure to be reconfirmed was based on a campaign that highlighted her refusal to implement the get remains tight. Whatever one thinks of the Legislature’s death penalty (she overturned the death penalty in all 64 such cases that came to her priorities, this much is clear: it never has enough money to court). Republican Gov. George Deukmejian led the battle by depicting her as soft on crime. California still has a death penalty, although only 13 people have been executed spend on all the programs it deems important. Currently, for since 1976, when the penalty was reinstated by the U.S. Supreme Court. Yet the fracas example, the governor is simultaneously attempting to fund over the death penalty underscores the broader crime debate. a $68 billion bullet train and a $39 billion project to build 10. Brian Joseph and Tony Saavedra, “Tough-on-crime stance emptied Califor- nia’s pocketbook,” Orange County Register, Dec. 6, 2009. http://www.ocregister. com/2009/12/06/tough-on-crime-stance-emptied-californias-pocketbook/. 14. Joseph and Saavedra, “Tough-on-crime stance emptied California’s pocketbook.”

11. Ibid. 15. George Skelton, “Gov. Jerry Brown holds strong hand on prisons,” Los Angeles Times, June 30, 2013. http://articles.latimes.com/2013/jun/30/local/la-me-cap-pris- 12. Ibid. ons-20130701.

13. These pensions were estimated to approach $1 trillion by the Stanford Institute for 16. Sharon Bernstein, “Judges stand firm on California prison crowding relief plan,” Economic Policy Research, based on return projections that track the risk-free Trea- Reuters, July 3, 2013. http://www.reuters.com/article/us-usa-california-prisons-idUS- sury rate. See, e.g., http://www.pensiontracker.org/. BRE96302S20130704.

R STREET POLICY STUDY: 2017 HOW CALIFORNIA SOFTENED­ ITS ‘TOUGH-ON-CRIME’ APPROACH 3 tunnels underneath the Sacramento-San Joaquin Delta to their pension payments to the California Public Employees’ improve water deliveries to the Central Valley and Southern Retirement System (CalPERS). Low investment returns fail California. to make up for the 50 percent retroactive pension increases granted to public-safety workers, starting in 1999.21 Moreover, legislators have recently embraced a single-payer health-care plan that, although it was shelved in the Assem- California’s recent softening on anti-crime policies has not bly, would cost more than three times the entire state gener- always been directly tied to spending issues, but these shifts al-fund budget, even by the Legislature’s own estimates. In might nonetheless offer some relief to state and local bud- an attempt to raise the revenue necessary to fund these pro- gets. Policymakers argue that policies that might reduce grams, Brown recently signed into law a record-setting gaso- California’s highest-in-the-nation recidivism rates could line tax and vehicle-license fee hike after legislators claimed also result in cost savings. Unfortunately, the state’s heavily there was insufficient money to maintain and improve the bureaucratic and union-dominated criminal-justice system state’s decrepit system of roads and freeways. has shown little willingness to adopt privatization or reform measures. Yet despite such efforts, California has been unable to get its prison spending under control, even with the massive chang- es made under the realignment system. According to a 2015 MAJOR CRIMINAL JUSTICE REFORMS study from the Vera Institute for Justice, a New York-based In recent years, California has experienced the following think tank that promotes criminal-justice reform: “Despite major reforms: a decline in both its prison population and the number of prison staff, California’s prison spending rose $560 mil- lion between 2010 and 2015, primarily because salary, pen- 2011 – Public safety realignment sion and other employee and retiree benefits continued to The governor’s realignment approach was unquestionably increase, also a result of union-negotiated increases.”17 the most significant change in prison policy that the state has embraced in decades. In 2011, Brown signed two major This is not particularly surprising, since California still has criminal-justice bills: Assembly Bill 109 and Assembly Bill the nation’s largest jail population. It costs $190 a day to 117. The goal of these pieces of legislation was to move lower- house inmates.18 With more than 82,000 total inmates in level felons from the state to the county, in hopes of lower- jail, the state spends more than $15 million a day to house ing state prison populations, keeping inmates closer to their its jailed population. This amounts to more than $5.5 billion families and reducing incarceration costs. per year – a staggering sum that does not even include its prison population.19 While the results of the policy are still subject to debate and study, a 2015 review by the nonpartisan Public Policy Insti- An analysis for the California Policy Center noted that: tute of California (PPIC) concluded:

California is in an ignominious group of 10 states that Realignment substantially reduced the prison popu- saw declines in the prison population since 2010, but lation, but almost all of the decline took place during which increased spending by $1.1 billion. Further- the first year and was not enough to meet the judi- more, California’s spending increase accounts for cial target. By September 2012, the prison popula- more than half of that number. California has by far tion had fallen by about 27,400 and the institutional the costliest system of incarceration in the nation at population, including all inmates housed in California more than $75,000 per inmate per year – more than Department of Corrections (CDCR) facilities … had triple the average cost of the 18 states with the least- dropped to 150.5 percent of capacity. The population costly rates.20 then leveled off and began to rise slightly.22

Furthermore, cities and counties are struggling with increased jail costs and are facing new rounds of increases in 2012 Proposition 36 – Changes to ‘three-strikes’ California’s original three-strikes law was unique in that it 17. Christian Henrichson, “The Price of Prisons,” Vera Institute of Justice, May 23, 2017. imposed a 25 years-to-life sentence on those who had been https://www.vera.org/projects/the-price-of-prisons. convicted of two or more serious or violent crimes – even 18. “How much does it cost to incarcerate an inmate?” Legislative Analyst’s Office, March 2017. http://www.lao.ca.gov/PolicyAreas/CJ/6_cj_inmatecost. 21. Jack Dolan, “How a pension deal went wrong,” Los Angeles Times, Sept. 18, 2016. 19. “The Facts: State-by-state data,” The Sentencing Project, Accessed June 16, 2017. http://www.latimes.com/projects/la-me-pension-crisis-davis-deal/. http://www.sentencingproject.org/the-facts/#rankings?dataset-option=SIR. 22. Magnus Lofstrom and Brandon Martin, “Public Safety Realignment: Impacts So 20. Steven Greenhut, “Prison unions punish taxpayers,” California Policy Center, June Far,” Public Policy Institute of California, September 2015. http://www.ppic.org/main/ 6, 2017. http://californiapolicycenter.org/prison-unions-punish-california-taxpayers/. publication_quick.asp?i=1164.

R STREET POLICY STUDY: 2017 HOW CALIFORNIA SOFTENED­ ITS ‘TOUGH-ON-CRIME’ APPROACH 4 if the third conviction was for something relatively minor. 2016 Proposition 57 – Increasing use of parole In 2004, voters rejected a measure to reduce its harshness This proposition was sponsored by Gov. Brown and passed (Proposition 66). by a 64 percent to 36 percent margin. It allows nonviolent felons to gain parole consideration and sentence credits for The original law led to some well-publicized controversies, good behavior and education. It also gives the courts discre- such as the case of a man whose third strike was the theft of tion to decide whether to prosecute a juvenile as an adult. In a piece of pizza from a group of children at Redondo Beach other words, it moves the state closer to where things were in 1995. He was ultimately let free after five years, but his before the 1970s. case became well-known. According to a 2010 Los Angeles Times article, “Controversial life sentences under the three- In his interview with the Mercury News, Brown explained his strikes law are hardly novel … Those sentenced under the law reasoning for authoring the bill as a way to reset the needle: include a thief caught shoplifting a bottle of vitamins and a drug addict who swiped nine videotapes to sell for heroin.”23 The Legislature kept moving the goalposts – not doz- ens of times but hundreds and hundreds of times. We In view of this, Proposition 36, which passed in 2012 by 69 now have more than 5,000 criminal provisions in Cali- percent to 31 percent, revised the original three-strikes law fornia … After 1977, the law went on steroids. Every to authorize a life sentence only when the new felony convic- time a headline about a terrible crime appeared, the tion is “serious or violent.” It also gave 3,000 inmates whose Legislature would jump up and say it had a solution.25 final conviction failed to meet such criteria the ability to peti- tion the court for an early release. The proposition moved the state closer to meeting its prison-reduction targets. 2016 – Death penalty repeal fails Not every recent effort to reduce punishment in Califor- nia has succeeded. For instance, in November 2016, voters 2014 Proposition 47 – Reducing criminal sentences were presented with two different death-penalty measures. Perhaps the most controversial of the recent reform mea- State law requires that if conflicting measures pass, the one sures, Prop. 47 also passed on a statewide ballot with a solid that receives the most votes goes into effect. In this case, majority, 60 percent to 40 percent. The controversy has cen- Proposition 62 would have eliminated the death penalty tered on whether the measure, which reduced certain crimes and replaced it with life in prison without the possibility of from felonies to misdemeanors, has led to a recent uptick in parole. It failed, 53 percent to 47 percent. crime in California’s major cities. However, by a 51 percent to 49 percent margin, voters As the state’s official ballot argument explained: approved Proposition 66, which promises to expedite use of the death penalty by reducing the number of appeals and Criminal offenders who commit certain non-serious petitions that people on death row can file. The California and nonviolent drug and property crimes would be Supreme Court stayed its implementation following the fil- sentenced to reduced penalties (such as shorter terms ing of a lawsuit that claims the initiative is unconstitutional. in jail). State savings resulting from the measure The fairly slim voter margins on both initiatives, however, would be used to support school truancy and drop- suggest changing attitudes in the state. After all, in previous out prevention, victim services, mental health and decades, it is unlikely a death-penalty repeal would have had drug abuse treatment, and other programs designed any chance at all. to keep offenders out of prison and jail.24

According to the Public Policy Institute of California, Prop. CONSIDERING THE ‘RIGHT ON CRIME’ APPROACH 47 reduced the state prison population by almost 8,000 In 2014, former California Assemblyman Chuck DeVore, inmates, which finally enabled California to meet the fed- R-Irvine, was invited by a joint legislative committee to come eral court order’s prison-reduction targets. from Austin (where he serves as vice president of the free- market Texas Public Policy Foundation) to Sacramento to speak about his adopted state’s approach to criminal-justice reform. It was an ironic twist, given that some of the Legis- lature’s most liberal members were eager to hear from one its most conservative former members.

23. Jack Leonard, “‘Pizza thief’ walks the line,” Los Angeles Times, Feb. 10, 2010. http://articles.latimes.com/2010/feb/10/local/la-me-pizzathief10-2010feb10.

24. “Proposition 47,” Legislative Analyst’s Office, Nov. 4, 2014. http://www.lao.ca.gov/ ballot/2014/prop-47-110414.aspx. 25. Calefati, “California Gov. Jerry Brown vigorously defends Proposition 57.”

R STREET POLICY STUDY: 2017 HOW CALIFORNIA SOFTENED­ ITS ‘TOUGH-ON-CRIME’ APPROACH 5 In an interview with the San Diego Union-Tribune, DeVore rated only “half-true” by PolitiFact: “Stone is correct when explained, “In spite of Texas’ well-deserved reputation as looking at the overall violent crime rate. From 2011 to 2015, this tough-on-crime state, and some of us would like to think there was a 3.1 percent increase statewide in the rate of vio- perhaps because of it, the lawmakers in Texas ... have seen fit lent crimes, a category that includes homicides, rapes, rob- to begin to innovate in the area of criminal-justice reform.”26 beries and aggravated assaults.”31 The report went on to note DeVore went on to note that the reform in question had saved that the 12 percent crime hike was only for the first half of Texans some $3 billion in taxpayer outlays and from hav- 2015, while the increase for the full year was only 8.4 percent. ing to provide another 17,000 prison beds. This, according to In any case, there was a general, overall increase in crime, DeVore was a policy known as “Right on Crime.”27 although it is hard to verify whether release policies were the cause.32 Run by Marc Levin, the “Right on Crime” effort “is designed A more detailed analysis from PPIC concluded: “Realign- to move conservatives away from a purely ‘law and order’ ment did not increase violent crime, but auto thefts rose.”33 approach.” Its goals are to: “enable criminals to pay restitu- These were findings, as the study was released only a year tion to victims and otherwise take responsibility for their after Prop. 47’s passage. A later American Civil Liberties actions, evaluate the size of the criminal-justice bureaucra- Union study in 2015 likewise saw little data to suggest con- cy, preserve family involvement, and reserve prison time for cern: crimes that threaten public safety.”28 On three separate occasions since 2000, California What they are doing in Texas is working, as crime rates con- implemented reforms that significantly scaled back tinue to plummet even though the state has shuttered sev- overly harsh penalties for nonviolent offenses that eral prisons. Unfortunately, few of Texas’ ideas have made it had crowded state prisons and cost taxpayers billions. through the California Legislature, which has focused more Despite repeated assertions by some in law enforce- on simply reducing sentences than reforming the way its ment that each of these reforms would lead to a ‘spike’ prison bureaucracy operates. According to the Vera Insti- in crime, the data tells another story: crime rates have tute study, Texas is a state where both prison populations continued to decline over the past 15 years and Cali- and prison costs have fallen.29 fornia by 2014 had the lowest violent crime rate since 1967.34

GROWING FEAR ABOUT CRIME A 2016 study published by the American Society of Criminol- California’s significant changes in incarceration policy have ogy further concluded that, “within just 15 months of its pas- not gone without controversy. Republican officials and law- sage, Realignment reduced the size of the total prison pop- enforcement unions, in particular, have tried to focus the ulation by 27,527 inmates, prison crowding declined from public’s attention on some troubling increases in crime rates 181 percent to 150 percent of design capacity, approximate- since the public safety realignment and passage of Prop. 47. ly $453 million was saved, and there was no adverse effect There has not been a detailed study determining the degree on the overall safety of Californians.”35 to which the new policies are linked to the latest crime sta- tistics, but criminologists know that public fears—and poli- Despite what the initial data suggest, rhetoric around crim- ticians’ generalizations about crime—don’t always correlate inal justice reform often continues to play on public fears precisely to crime trends. and anxieties. In a June 8 column for Fox & Hounds Daily, Michele Hanisee, president of the Association of Los Angeles For example, in a March 2017 statement Sen. Jeff Stone, Deputy District Attorneys, wrote: R-Riverside, claimed: “Since the passage of Proposition 47 by voters in 2014 and the signing of AB 109 in 2011, violent crime has been on the rise in California, up 12 percent in 2015 statewide according to the FBI.”30 This statement later was 31. Chris Nichols, “Has violent crime been on the rise in Calif. Since 2011? Did it spike 12 % in 2015?”, Politifact, March 6, 2016. http://www.politifact.com/california/state- ments/2017/mar/06/jeff-stone/has-violent-crime-been-rise-california-2011-and-di/.

26. Steven Greenhut, “No crime for California to learn from Texas,” San Diego Union- 32. Ibid. Tribune, Feb. 3, 2014. http://www.sandiegouniontribune.com/news/politics/sdut-no- crime-California-learn-from-Texas-2014feb03-htmlstory.html. 33. “Public Safety Realignment: Impacts So Far,” Public Policy Institute of California, September 2015. http://www.ppic.org/publication/public-safety-realignment- 27. Ibid. impacts-so-far/.

28. Ibid. 34. Margaret Dooley-Sammuli, “Changing Gears: California’s Shift to Smart Justice,” American Civil Liberties Union of California, November 2015. https://www.acluca.org/ 29. Henrichson, “The Price of Prisons.” wp-content/uploads/2015/11/Prop47_report_final1.pdf.

30. Office of Sen. Jeff Stone, “Statement by Senator Stone on the slaying of Whittier 35. Jody Sundt, Emily J. Salisbury et. al., “Is Downsizing Prisons Dangerous?”, Crimi- Police Officer,” Press statement, Feb. 21, 2017. http://district28.cssrc.us/content/state- nology & Public Policy, March 9, 2016. http://onlinelibrary.wiley.com/doi/10.1111/1745- ment-senator-stone-slaying-whittier-police-officer. 9133.12199/abstract.

R STREET POLICY STUDY: 2017 HOW CALIFORNIA SOFTENED­ ITS ‘TOUGH-ON-CRIME’ APPROACH 6 Prop. 57 will flood our streets with thousands of dan- This year, civil libertarians have backed two major bills that gerous criminals released early from prison, a fact that would reduce the use of money bail and replace the current has been made clear as the California Department of system with one that relies on a risk-assessment system. The Corrections and Rehabilitation has begun publish- current system allows people accused of serious crimes to ing the release criteria. … Inmates are now eligible go home as they await trial, provided they can afford to post for parole after serving 50 percent of the sentence for a bond. Meanwhile, people accused of lesser offenses lan- their primary offense – regardless of any enhance- guish in county jails if they or their family members cannot ments that had been added onto the sentence, and afford the bail bond. This also encourages them to cop a plea regardless of previous strikes for brutal crimes such so they can get back to their jobs and pay the rent. This is a as rape and murder.36 major problem, both from the perspective of justice and for state taxpayers, given the costs associated with keeping the But so far, increases in crime have not led to a lessened jails so full. state of public safety or to pushback against these and other criminal-justice reforms. Former Republican Lt. Gov. Abel According to a 2013 report from the Laura and John Arnold Maldonado’s 2014 run for the governorship made old-time Foundation: “A study, using data from state courts, found that law-and-order policies the main theme of his campaign. His defendants who were detained for the entire pretrial period press conferences featured photos of people he said commit- were over four times more likely to be sentenced to jail, and ted crimes after early release and his campaign sign featured over three times more likely to be sentenced to prison than the imagery of a knife. His campaign never gained traction. It defendants who were released at some point pending trial.”38 remains to be seen whether this approach will resonate with Those higher sentencing numbers are related directly to the other politicians as the 2018 race approaches. pressure defendants face to accept a plea deal, even an unfa- vorable one. If crime trends continue upward, California prison reform- ers could face a 1970s-style backlash. That would be prob- Supporters of money bail argue that the system saves money lematic, given that California is long overdue for a correc- for taxpayers, because private bail companies are responsible tion. After years of uncontrolled spending, a backlash would for assuring that the accused show up to their court appoint- threaten a variety of reforms that have been making their ments, but research suggests the opposite is true. Because so way through the state Legislature. many people cannot post bail, they must sit unnecessarily in jails at taxpayer expense. According to a January report from the Pretrial Justice Institute: WHAT’S NEXT ON THE HORIZON? Although Gov. Brown has complained it was the Legislature Jailing arrested people before trial is the greatest that kept moving the goalposts in the 1970s, these days, it is expense generated by current pretrial justice practice reformers who are mostly on the offensive. Last year, they … (T)axpayers spend approximately $38 million per managed to pass a far-reaching reform of the state’s civil day to jail people who are awaiting trial (63 percent of asset forfeiture process, particularly with respect to drug the total jail population, or more than 450,000 indi- crimes. The expanded and widely abused forfeiture rules, viduals on any given day). Annually, this $14 billion is another vestige of the war on crime, often were used against used to detain people who are mostly low risk, includ- ordinary people never convicted or even accused of wrong- ing many whose charges will ultimately be dropped.39 doing. Police agencies increasingly and inappropriately have viewed asset forfeiture as a means to fund their departments, The Senate reform measure, S.B. 10, passed the full Senate rather than a tool to battle drug kingpins. Even U.S. Justice in May by a 26 to 11 margin and still has a chance of passage Department officials who helped start the program have in the Assembly. The Assembly measure, A.B. 42, narrowly argued that, “the tactic has turned into an evil itself, with failed to pass on the Assembly floor in June. This remains one the corruption it engendered among government and law of the most important reforms that California could pass in enforcement coming to clearly outweigh any benefits.”37 2017, given the cost and fairness implications. Under California’s reforms, it now requires conviction before forfeiture in most cases. Another bill up for consideration in 2017 would make an enhanced sentence for gun possession discretionary rather than mandatory, which is a welcome move away from the 36. Michele Hanisee, “Prop. 57: Criminals far and wide love it,” Fox & Hounds Daily, June 8, 2017. http://www.foxandhoundsdaily.com/2017/06/prop-57-criminals-far- wide-love/. 38. Public Safety Assessment, Laura and John Arnold Foundation, 2016. http://www. 37. John Yoder and Brad Cates, “Government self-interest corrupted a crime-fighting arnoldfoundation.org/wp-content/uploads/PSA-Risk-Factors-and-Formula.pdf. tool into an evil,” Washington Post, Sept. 18, 2014. https://www.washingtonpost.com/ opinions/abolish-the-civil-asset-forfeiture-program-we-helped-create/2014/09/18/72 39. “Pretrial Justice: How Much Does it Cost?”, Pretrial Justice Institute, January 2017. f089ac-3d02-11e4-b0ea-8141703bbf6f_story.html?utm_term=.8274e535b52d. https://university.pretrial.org/viewdocument/pretrial-justice-how-much-does-it.

R STREET POLICY STUDY: 2017 HOW CALIFORNIA SOFTENED­ ITS ‘TOUGH-ON-CRIME’ APPROACH 7 mandatory minimum sentences embraced by California poli- ABOUT THE AUTHOR Steven Greenhut is senior fellow and Western region director of the cymakers in the 1970s and 1980s. Yet another would reform R Street Institute. He is responsible for overseeing R Street’s efforts the state’s sex-offender registry by eliminating lifetime reg- in California, Oregon, Washington state, Nevada, Arizona, Alaska istration requirements for many people convicted of minor and Hawaii. His duties include authoring op-eds and policy studies, sex-related offenses. California’s registry has topped 100,000 testifying before state and municipal legislative bodies and repre- individuals, most of whom are considered by law enforce- senting R Street as a speaker, public commentator and coalition ally in venues in which it is possible to move state and local policy in the ment to be “low-risk.” Instead of improving public safety, the Western region in a more free-market direction. list diverts law-enforcement resources from more pressing concerns and undermines the future prospects of those low- He joined R Street in February 2016, having most recently served as risk people ensnared by the system. California columnist for the San Diego Union-Tribune. In this role, from his base in Sacramento, he wrote a regular reported news column covering the State Capitol and issues outside of San Diego. Even many members of the law-enforcement community Previously, he was vice president of journalism at the Franklin Cen- now support reform of California’s sex-offender registry, ter, where he oversaw a team of watchdog editors and reporters in which dates to the 1940s. California is one of only four states state capitols. nationally that treats all offenders the same, regardless of their age at the time of the offense or the person’s risk to reof- Steven spent most of his career as a member of the editorial board of the Orange County Register, where he still writes a weekly local- fend.40 S.B. 421, which passed the Senate floor May 31, would politics column. He also spent nearly five years as a building and create a tiered registry system. Further reform proposals that remodeling editor at Better Homes & Gardens magazine, and contin- have been discussed, but are not proposed officially at pres- ues to ply his interest in remodeling old houses. ent, would remove juveniles entirely from the registry. The latter would be a wise move, except in egregious cases.

CONCLUSION The fate of various bills related to criminal justice remains uncertain for the ongoing legislative session, but there’s little question that the pendulum is swinging in a more lenient direction, at least when it comes to prison-related issues. There are few serious efforts in the current Legislature to toughen sentencing. Unfortunately, lawmakers’ willing- ness to reduce sentences has not led to a renewed willing- ness to rethink other critical elements of the law enforce- ment bureaucracy or to challenge costly and inhumane rules defended by unions who represent workers in California’s massive justice system.

The new dynamic at least offers some hope that California can save money and create a more efficacious and fair justice system. To do so, state officials should pay more attention to DeVore’s “Right on Crime” approach that is currently being used successfully in Texas to reduce the prison population and to lower costs for taxpayers.

The question remains whether current upward trends in crime rates will lead to increased fear among the general public and a scuttling of the state’s efforts to move away from its longstanding, but expensive and counterproductive “law and order” approach. However, it would be a shame if the state abandons attempts at meaningful reform before the bulk of their efforts have an opportunity to be closely exam- ined for long-term results.

40. Steven Greenhut, “R Street Institute letter of support, S.B. 421,” May 19, 2017. http://www.rstreet.org/outreach/letter-support-california-sb-421/.

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